Research On The Problem Of The Commercialization Right Of Natural Person's Personality Mark

The commercialization of natural person's personality mark is the symbolized carrier of personality elements that can be expressed through a certain medium and other marks that can form a specific identity orientation.Natural person's personality mark is widely used in commercial activities because of their role in enhancing commodity popularity and promoting commodity sales.The commercialization of natural person's personality mark contains the connotation of "formation" and "use".It does not involve the "forming" part,but only refers to the "use" of natural person's personality mark,which belongs to the category of property rights.The judicial practice protects the natural person's personality mark mainly through the system of personality right,advertisement law,trademark law and anti-unfair competition law,for the current law of China lack of provisions on the property interests of natural person's personality mark.However,the protection of the system of personality right is not appropriate,and the protection of other department laws is not extended.It is difficult to satisfy the demand of protecting the commercialization of natural person's personality mark.In the current social context of our country,it has the necessity of law policy and the possibility of law technology to Creation of a new right to protect the natural person's personality mark.It is suggested to establish the new property right which named the commercialization right of natural person's personality mark.Takes the American system of the right of publicity and relevant provisions of China's copyright law as lessons.Regard public figures as the subject of the commercializationright of natural person's personality mark,the object contains the property interest which come from the personality mark that can point to specific identities.Its content includes positive power and negative power,and the limitation of rights includes the principle of fair use,statutory license and exhaustion of rights.The principle of fault liability is applicable to the violation of the commercialization right of natural person's personality mark.The tort constitution includes the following five elements: the first one is the personality mark of claim protection has a stable correspondence with the specific natural person,the second is the way the actor uses the personality mark leads the related public to misunderstand that it is related to a specific natural person,the third is the personality mark has certain popularity and commercial value,the fourth is the use of personality mark has caused economic damage to specific natural persons,and the last one is the actor is subjectively malicious.The principle of judging malice of the actor is "knowing or should know + using without permission",The "reasonable possibility of knowing" can be further used to determine whether the actor is "knowing or should know".Finally,if the commercialization right of natural person's personality mark is infringed,the tortfeasor shall bear civil liability for stopping the infringement and compensating for the loss.The amount of compensation shall be determined in the following order: the actual loss caused by infringement,the benefits obtained due to infringement,the reasonable multiple of the license fee in the license contract for personality mark,and the amount of legal compensation under RMB 3 million.